Canada: What They Didn’t Tell You: Internal Government Directives And Their Impact On Canadian Work Permit Applications

Last Updated: November 11 2014
Article by Benjamin A. Kranc

In addition to the myriad of continuing changes to Canada's Temporary Foreign Worker Program (TFWP) made available to the public, there is a significant amount of unpublished information 'below the surface'. Failure to be aware of what Employment and Social Development Canada (ESDC) didn't tell you can lead to devastating effects in the course of seeking to hire a foreign worker. (ESDC administers the TFWP along with Immigration Canada.)

Before hiring a foreign worker (with few exceptions), an employer must seek a Labour Market Impact Assessment (LMIA) to substantiate why a Canadian is not being hired. The program is administered by ESDC, but operated by Service Canada. Here are some crucial, and unpublished, factors that ESDC has indicated are to be considered when seeking an LMIA:

  • An LMIA application can be submitted only after the four week recruitment period concludes. That is, although the LMIA process may take longer than four weeks, an employer cannot launch an application, expecting the recruitment to be concluded and provided to Service Canada before the application is considered.
  • Ads for LMIA purposes must post wages. The internal directives indicate that the wages can be posted as a range, but the low end of the range must meet the prevailing wage, that would ordinarily be the minimum salary possible for the position in that location.
  • ESDC dictates that recruitment for LMIA applications needs to be carried out on the applicable national or provincial job bank, plus two additional methods. Examples of the two additional methods are given, such as general employment web sites, specialized web sites for specific industries, social media web sites, etc. What is not made public, however, is that each of the two additional methods must be a different type of recruitment. That is, only one of the two postings can be to a general employment web site (i.e. you can't use both Monster AND Workopolis to satisfy the requirement for two postings), only one of the two posting can be to a social media site (i.e. you can't use both LinkedIn AND Twitter to satisfy the requirements for two postings), etc. Certainly, this would not be obvious from the government's publicly-provided information.
  • The employer must post all mandatory information directly in the advertisement.  A link to the information is not acceptable. 
  • The requirement to target underrepresented groups may be satisfied through the use of web sites such as Kijiji, however, the ads must be explicit that underrepresented groups are encouraged to apply.
  • There may be occasional leniency in allowing an employer not to disclose certain information in an ad (e.g. salary, company name). This may occur, for example, in high profile occupations (e.g. senior executive), or for competitive reasons. ESDC (via Service Canada) may allow this, if the employer can demonstrate that the advertised position should be exempt from including any of the listed mandatory job advertisement information. Recognize, however, that an employer seeking an LMIA will not know if this position has been accepted until the application is adjudicated.
  • Specific geographic regions may still have leniency in waiving recruitment requirements, but this is not fully articulated. If the prior LMO regime is to be instructive in this regard, consideration could be given to waive the recruitment requirements when the following are present: (a) a high salary (e.g. $200,000/year), (2) very high skilled (e.g. NOC 00), (3) specialized nature of the position (e.g. international knowledge); and (4) recruitment efforts will not likely result in finding the expertise being sought. Yet again, the employer will not know if the position in the LMIA application is accepted until the application is adjudicated.
  • Head-hunters can be considered as one of the additional methods of recruitment, but the employer must demonstrate that the head-hunter meets the requirements otherwise set out, by providing proof of its efforts.  As well, the advertisements must state the employer's name and for job advertisements where a CRA business number is required by the employer's business number.
  • 'Spin Off' advertisement does not constitute an appropriate method of recruitment. That is, the employer must post the ad, and cannot rely on a web site which has automatically uploaded information from the original posting. As such, if an ad appears on Monster because Monster automatically reposted it from an industry-specific web site, the Monster ad does not count. (The Monster ad would count if the employer itself posted the ad on Monster).

Actions to Take:

Changes to the TFWP are continuing. Employers must ensure that they are constantly updating their knowledge base vis-à-vis the TFWP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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